By Carie Silvestri
Welcome to “Mediation Month” here on my blog. Over the last few months, I’ve addressed what individuals need to know about mediation—what it is and how it’s different from litigation and collaborative divorce. As a mediator, I see issues that come up time and again during mediation that could be avoided if addressed ahead of time, so for the next few posts, I will focus on what attorneys need to know about preparing for mediation—a mediator’s guide for attorneys, so to speak.
In last week’s post, I addressed some of the most frequently asked questions about mediation. Many people don’t understand how mediation works or have misconceptions that can impede their ability to make the best decisions at mediation. Following are things to discuss with your client prior to mediation to ensure the most successful outcome.
Discuss the Process
Educate your client on what mediation is and how the process works (you may want to print out my previous post, Mediation FAQ, to discuss with and give to your clients prior to mediation). It is human nature to fear the unknown, so the more your clients know about what to expect, the more comfortable they will feel. It is also an intensely vulnerable time, so the more you can normalize the process, the better your client will feel.
Following are several key points to cover prior to mediation day.
- Caucus-style Mediation – Explain that both parties will be in separate rooms during the mediation. Many people assume they will be in the same room with their spouse, and it’s a relief to most to learn that is not the case.
- Time Limits – Most mediations are set for a half day (four hours) or a full day (eight hours). Be sure your clients are aware of the time limits, and know if they go beyond the scheduled time frame, they will have to pay the mediator by the hour for time that they run past.
Help Clients Have Realistic Expectations
- Expect the day to be emotional – During mediation, people are often surprised by the emotions they feel. Indignation, fear, anger, sadness, tears—they’re all part of the process. After all, this is a big day, the day they will be making critical decisions and finalizing their divorce. When the time comes, many people suddenly feel like they’re not ready. Clients need to be prepared to make a decision—both emotionally and practically, which means having all the necessary documentation such as current bank statements, real estate appraisals, and other information.
Also, a certain degree of sadness at the end of the day is normal. For many, a divorce is the death of a dream, and what they thought their life would be. Even though they most likely don’t want to be with the person they were married to, they may still have some connection to them and may still care about that person. Preparing your client for the inevitable sadness that comes with finalizing their divorce will help mitigate it, so they can move forward toward to the next phase of their life.
- Expect to not get everything you want – The goal of mediation is to reach an agreement both parties can live with. No one comes out of mediation thinking it was wonderful and they got everything they wanted. The ideal settlement is one your client can live with, recover from, and that allows them to move forward with their life. Help your client to understand this ahead of time to provide them with realistic expectations of the outcome.
- Expect to Settle – The whole purpose of mediation is to reach an agreement both parties can live with. Be sure your client understands there will be pressure to settle within the scheduled time frame to avoid incurring additional expenses or moving forward to litigation, and emotions will run high as they get close to reaching an agreement. Clients also need to understand that since mediation is not binding, they do not have to settle, but be transparent with them about the next steps if they don’t settle.
Prepare Your Client for the Mediator’s Style
Not all mediators approach mediation the same. As the attorney, it is important to choose the type of mediator that will work best for your client, as well as prepare your client for the mediator they will be using so they know what to expect. Following are a few mediator styles you and your client may run into:
Directive: This type of mediator will tell the parties what they need to do in a direct manner, and often give their opinion.
Retired Judge: Many clients feel more secure knowing that their mediator has the experience and perspective that comes from being a former judge. This type of mediator tends to be more authoritative and directive and focus on the law.
Trial Attorneys: This type of mediator approaches mediation from their perspective as a trial lawyer, often telling “war stories” and giving examples of how similar cases and situations have played out in the courtroom.
Interest-Based: Interest-based mediators focus on listening and helping both parties come up with creative solutions that are not necessarily law based. While all mediators have to work within the boundaries of the law, mediation does allow for creative solutions, and this type of mediator will think more outside the box when helping the parties resolve their issues.
Understand the Role of the Law in Mediation
Judges do not have a lot of discretion to deviate from the law in the courtroom, but in mediation, the parties have the ability to agree to whatever they want within the framework of the law. The parties still have to work within the general framework of the law, and certain rules still have to be followed—for example, there must be child support, a child visitation schedule, etc. However, mediation allows for some flexibility for how that is accomplished. For example, in mediation, both parties can agree to a visitation schedule that works best for them and their children, instead of the cookie cutter standard schedule.